Dharun Ravi and the Debate Over the (In)Justice of Hate Crime Laws

Dharun Ravi, the former Rutgers student who spied on Tyler Clementi and contributed to Tyler's death, received a sentence of 30 days in jail and 3 years of probation. He is to perform 300 hours of community service, undergo counseling, and pay a $10,000 fine that will go to an organization providing assistance to victims of bias crimes. This sentence is significantly more lenient than the decade in jail Mr. Ravi could have received.

I agree with Nathaniel Frank over at the Huffington Post, who said that Mr. Ravi's behavior was "inexcusable." His actions surely contributed to Clementi's death" and "were malicious, irresponsible, dehumanizing, and criminal." And yet, like Mr. Frank, I was almost "relieved" to hear that Mr. Ravi would not face the maximum sentence. I would have been somewhat more satisfied with a few-month sentence rather than a one-month sentence, but that is not the point. In a previous, somewhat controversial prior column on the Tyler tragedy, I argued what Mr. Frank would argue later: That we have to be careful not to focus our search for justice solely on one individual where greater social forces are to blame and then prematurely congratulate ourselves and wash our hands of the responsibility to address those social problems once Mr. Ravi's trial is over.

Here's part of Mr. Frank's take, worded much more artfully than mine:

While Ravi must take responsibility for his actions, we are all accountable, not just him. Anti-gay sentiment lies deep within many, perhaps most, of us, as does an atavistic urge to denigrate and exclude out-group members. The fact that this may be our hardwiring -- evolved from a time when we lived in tribes of 50 to 100 closely related individuals -- in no way justifies indulging those impulses, but it does remind us that we have to fight against them rather than pretending they don't exist and acting like those who exhibit our darker side are outliers. And punishing one dumb kid for failing to rein in his dark side primarily serves to make us feel better when it shouldn't, to shift the burden of responsibility to anyone but ourselves. How did the 20-year-old Ravi grow up in a world where he thought any of this was OK and might even win him praise?

While Mr. Frank's column touches on the sociological forces that created the circumstances for Mr. Ravi to think that his disgusting behavior was permissible or normal, he mostly focuses on what it means to seek "justice" for Tyler, his family, and yes, even Mr. Ravi and his family. I would like to touch on that topic today.

The Tyler Clementi case, Mr. Ravi's trial, and the hate crime enhancements that could have sent Mr. Ravi to prison for a long time epitomize the tension between an emotional desire for retributive punishment -- the idea that bad acts deserve punishment for no other reason than the categorical view that bad acts deserve social condemnation -- and a smarter, case-by-case appreciation for the palliative or deterrent effect of the law. I argue that hate crime enhancements are almost exclusively retributive and their across the board application risks turning the criminal law into a tool of vengeance.

The retributive theory of punishment posits that punishment is justified on the grounds that wrongdoing merits punishment; that is, the criminal gets punished because a criminal deserves to get punished. There is no utilitarian or forward-looking benefit to punishment in this model because punishment is valued without reference to the contingent benefits that the public might (or might not) enjoy. Punishment, then, is Kantian -- it is justified in and of itself, independent of any benefit that may accrue to a society.

A necessary corollary to any retributive penal model is that if a criminal should be punished because he deserves it then he deserves to be punished in accordance with his desert, no more and no less. This is the theory of proportionality. Proportionalists argue that the severity of punishment should be commensurate with the seriousness of the wrong because, as Professor Andrew von Hirsch has argued, the purpose of punishment is to express a society’s distaste for certain conduct and the amount of punishment reflects the magnitude of that distaste. Any disparity between the punishment and society's view of how "bad" the criminal act was would be illogical.

The retributive doctrine of proportionality, then, animates the public's zeal for criminal penalties in severe bullying cases and hate crime cases. Tyler died and we want justice! But, we should really think more about what "justice" means in this case. Does justice mean 10 years in jail for a stupid kid who never apologized? Does justice mean deportation? Will any form of justice fill the void left by Tyler's tragic death?

In some ways, an emotional connection to justice is quite logical. As Professor Samuel Pillsbury has noted, both critics and admirers of the retributivist model agree that much of the moral weight behind the criminal law comes from our emotional reactions to wrongdoing. Such emotion is a fundamental trait of humanity and can explain why we want criminal laws in the first place. Our reactive emotions -- the emotions inspired by wrongful acts -- are what inspired us to create criminal laws to deal with wrongful acts in the first place. Therefore, the emotional or intuitive desire to hold Mr. Ravi responsible for Tyler's death arguably reflects a foundational feature of the criminal law.

A problem arises when this emotional desire for retribution is the only justification for a law. Consider the debates surrounding tough anti-bullying laws in New Jersey and Massachusetts and part of the discussion in Congress over the Matthew Shepard Act, the federal LGBT-inclusive hate crime law. Legislators read stories of victims and argued that perpetrators "deserved" punishment. They said that the acts were "heinous" and "merited social stigma." They wanted to "send a message" that beating up a gay kid and leaving him for dead is just as bad as lynching a black man. This goal is admirable: all laws have an expressive side and society needs the reminder that violence against gays is morally reprehensible.

However, there are three problems with the emotionalizing of law. First, it risks the exclusion of other, more meritorious reasons for passing criminal laws, such as deterrence. During the hate crime law debates in Congress, there was precious little discussion about when precisely to apply hate crime enhancements. Nor was there any evidence entered into the record that these laws actually reduce the number and severity of hate crimes. (Just to be clear, hate crime laws may indeed deter hate crimes. My point is simply that the animating factors behind legislatures passing tough anti-bullying punishments and hate crime laws have been retributive, not deterrence-related.).

Second, these laws are purposely written broadly. They have to be; otherwise, they could not have the expressive effect of enforcing the social norm that all homophobic violence is bad. They can apply to Mr. Ravi and to the villainous bigots who killed Matthew Shepard. But, few rational thinkers could confuse the perpetrators' level of culpability.

Third, a solely retributive law is no better than a purely vengeful one. The retributive concept of punishment is meant to be distinguished from revenge or retaliation based on its point of view -- namely, retribution focuses on society's assessment of the defendant's wrong, whereas vengeance depends upon the impulse of the victim, or his kin, supporters, or friends, to strike back.

In the bullying and hate crime context, a retributive impulse is the state's response with tough criminal laws, whereas revenge occurs when the bullied victim or the hate crime victim and his affinity group fight back and bully or assault their harassers. Offering his defense of retributivism, Professor Douglas Husak admits that retributivists commit a logical jump from a criminal's desert to state-imposed punishment. According to Professor Husak, retributivists can argue that culpable wrongdoers deserve suffering, which can -- but need not -- be imposed by the state. It is punishment's attendant suffering that satisfies our intuitive and emotional responses to criminal conduct, not the fact that such suffering is imposed by the state.

After all, devices other than state punishment can satisfy the demands of retributive justice. A victim's kin can exact their own retribution, just like a bullying victim can respond to harassment by physically assaulting his tormentor. Although retributivists like Professor Husak believe in state monopolies on punishment and universal denial of a personal right to revenge, those beliefs cannot stem from retributive theory alone. There is, then, no principle internal to retributive theory that distinguishes between vengeance and state-imposed punishment.

Therefore, if proposals to criminalize egregious bullying and to enhance punishments for hate crimes are justified solely by their retributive value, such proposals are no more justified than a law that allows bullying victims to attack their tormentors with abandon or for gay persons to exact group revenge against gay bashers. Justice cannot be purely emotional. If it were, we'd be a clan culture based on so-called honor, or vengeance, killings.

The tragedy that befell Tyler requires us to hold the most culpable person responsible, and that is Mr. Ravi. But, as I have argued, the legal regime that would have justified a long and harsh sentence lacks internal consistency, reason, and all the indicia of good policy. Mr. Ravi should be punished, but how he is punished -- and our response to his sentence and his disappointing behavior -- will say more about the maturation of our society and our ability to distinguish emotion from reason as a legitimate basis for criminal laws.

Postscript: This column is based on an article of mine published in the latest issue of the Temple Law Review. For those interested, it is available for download here.

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Comments

@Jeremy
If they are trying to practice journalism rather than propaganda, why not have a similarly "spectacularly written article" from the opposing view? I thought objectivity was a value held by journalists and abhored by propagandists. What's it look like to you? Two sided? How so?

Posted by: NullNaught | May 23, 2012 3:12:03 PM

30 months would have been better for this guy. Put him in a real prison. Also, has he even apologized for his actions? I haven't heard a peep from him on that.

Posted by: Frank S | May 23, 2012 3:14:42 PM

Comments have quickly evolved into name calling? I think it's important for all to recognize our own emotional reactions and investment that result from our personal experiences with homophobia on individual and social levels, since I think a good part of this is at play in the comments. We tend to prefer a justice system that seeks short-term punishment rather than rehabilitation or reform. The vast majority of persons incarcerated for crimes--hate, property, drug, violent--return to the community but instead of focusing on addressing the criminogenic factors to decrease future criminal behavior or to promote community justice to make amends to those affected by the crimes we prefer short-sighted blood letting.

I also think, however, that they also reflect our American culture's desire for individual level punishment as well as a need to portray things dualistically--entirely bad or good, only individual or social in origin, raging punishment or escape from justice. But there is a lot more grey in the world, folks. We even see that in the comments criticizing Mr. Waldman, who never wrote that Mr. Dharun had no personal responsibility when he cited social factors or never indicated that he shouldn't be held accountable. Yet, both of those accusations are made by readers here.

Long-term change in Mr. Dharun's character or in the broader cultural environment will not be fully modified by the amount of time he spends in prison. I think 30-90 days are valid options for the privacy convictions, but should have been accompanied by mandatory participation in restorative justice programming with individuals, families, and communities that have been vicitimized by homophobic behavior. Gaining insight and making amends are more likely--though clearly not guaranteed--through this avenue than through incarceration alone.

I personally value Mr. Waldman's writing. I may not always agree with him, but it adds intelligent and insightful analysis and critique from a socio-legal perspectice. LGBT constituents should be open to reading and hearing multiple voices, since there is not one single shared point of view among us. And it's a welcome change to the videos of the West Hollywood lipsynchers.

Posted by: Scotto X | May 23, 2012 3:18:13 PM

At this point he'll complete his sentence before the blogosphere makes up its mind.

Ravi is probably unable to "read" the emotional states of others and is generally immature. This was probably foremost on the mind of the judge. Also, his co-conspirator Wei got a ton of community service and probation, so the similarity to that plea deal was probably intentional. Keep in mind that the prosecutor was offering to plea to probation anyway, so the sentence sends the "just take the plea" message that the courts really want to get out. If the original plea deal was acceptable, how can a harsher sentence not be acceptable?

Posted by: anon | May 23, 2012 3:22:35 PM

Dharun can receive all the rehabilitation he needs------in India. Hopefully, he's deported. And I hope the Clementi's file a civil suit against Dharun.

Dharun is clearly not all the way there, nor is his family. He has specifically said he feels zero responsibility regarding the circumstances surrounding Tyler's suicide. He thinks he's a victim and he thinks he's a scapegoat, so therefore, no, no apologies have come from him. Absolutely zero awareness whatsoever, the kid seems like the stereotypical privileged rich kid born into a wealthy family.

Boys will be boys culture reigns supreme in America. How can people be expected to be serious in tackling bullying when we continue to see that NOTHING is going to be done to bullies/harassers? They're even defended. And the victims of this harassment are blamed. It's sad and it's sick.

Posted by: Francis | May 23, 2012 3:29:47 PM

Let's be clear here. Yes, Ravi bears some responsibility for Tyler Clementi's suicide, but he was not the only cause. Not to blame the victim, but suicides have multiple causes, some of them almost certainly biochemical for which no person bears responsiblity. To punish Ravi as if he had murdered Tyler Clementi with a gun, or a knife, or had pushed him off that bridge is a gross oversimplification of events. Yes, he deserves punishment for what he did do. The goal is to deter this behavior in Ravi and others, and hopefully to get Ravi to develop some empathy for those unlike himself. I'm not at all sure that a longer sentence would accomplish any more.

Posted by: Jonathan Oz | May 23, 2012 3:32:39 PM

Mr. Waldman's elaborate straw-man argument can be refuted with a single word:

DETERRENCE!

FSM help us if they aren't teaching him the meaning of that word at Harvard Law.

Prioritizing protecting the guilty over protecting the innocent is a clear case of ostensible compassion being taken to absurd lengths.

Posted by: Dan | May 23, 2012 3:43:32 PM

It is unbelievable to me that CA Western's midget clown version of Laurence Tribe continues to post here as if his analysis is worthy of respect. Ari, you have made a fool of yourself and have no credibility as a legal analyst.

To take but one of many examples, you posted that this case - a criminal prosecution of an individual, in which the university is not even accused of wrongdoing - created "new rules" for universities. When are you going to enlighten us as to what those "new rules" are? In fact, all the old rules were in place here, Rutgers followed them diligently, and that is why there has not been even a single civil lawsuit against it.

You're a joke. You want to stand out so you take unconventional positions, even if that means belittling Tyler Clementi's torment and dulcifying Ravi's cruelty. Go away.

Posted by: Dennis | May 23, 2012 3:54:20 PM

It's amazing how much people want to see other people suffer. This Ravi guy according to his Mother's speach has barely eaten and has had absolutly no social life for the last 20 months. He looks to be depressed out of his mind in all the media pictures but no thats not enough for people. surely life would be restored to the dead young man and the world made much better if a precisely equal amount of suffering could be inflicted on the roommate and a great deal of scarring done to another young man. Why don't we all just do our best to introduce a little more suffering into the world everyday when we decide others need it? I agree with the NJ article stating that this was just a huge lack of communication between two boys.

Posted by: litzenburn | May 23, 2012 3:59:16 PM

Hate crimes laws are necessary-precisely because victims of crime who are gay or lesbian or transgender rarely get any justice, hello "gay panic"! Sentences are watered down or completely obliterated if victims are gay, I'm not exaggerating. Even with hate crimes laws as was the case with Tyler justice was not done because he was gay. Until the GLBT community starts getting the same justice through the legal system we have a right to be angry-especially with self appointed gay leaders in the media showing support for these sociopaths who keep hurting us. Internalized homophobia indeed.

Posted by: Molc | May 23, 2012 4:29:30 PM

It's my understanding in this state, a convicted shoplifter would have received an automatic sentence of 90 days. I think that helps put into perspective how the court placed a value on a stolen gay young man's life. And again--as another poster commented, Ravi had multiple convictions--not just one.

Correct me if I am wrong - but is there any evidence indicating that it was Mr. Clementi's problems relating to his homosexuality or any form of bullying he might have faced, wether it was from Society or Mr. Ravi - which caused him to commit suicide?

He has become a symbol for bullied gay teens, but to me - based on what I've read from the New Yorker article and from his brother's letters in Out - he seemed a lot more confident about his own sexuality than I was when I was eighteen and he actually seemed to be enjoying being an out gay man.
There is also no clear evidence to even say if his mother outright rejected him - she was clearly ready to accept his older brother if he came out as gay, she was more accepting and supportive of her son than most parents are. Mr. Clementi did seem to have a support system (friends, brother, father) to help him deal with his sexuality, which is more than what gay teens can ask for.

I am no Ravi sympathizer, I do feel he deserved more jail time - for charges related to his tampering with the evidence and witness manipulation. But I think he is justified if he feels he has been unfairly held accountable for Mr. Clementi's suicide, when no-one, except the Clementis and the judge, knows the real reason he chose to take such a drastic step.

Posted by: Avial87 | May 23, 2012 5:11:28 PM

Ari you're against retribution.

I'M ALL FOR IT!

"But Ravi did nothing to YOU ."

Yes he did and to you too which you would know if you had an ounce of self-respect.

"And he should not be punished as a symbol for all that is wrong in society."

This article is simply disgusting. At least, the prosecutor is outraged by this miscarriage of justice. He has filed an appeal of the outrageous sentence, based in part on the fact that the judge who seems as biased against gay people as Are Ezra Wildman failed to give Ravi any time at all on the bias intimidation conviction. I hope the appeal succeeds though its changes of success are said to be slight. With articles from quislings like this, they are probably slighter. The defense will say even gay people don't think hate crimes matter--they will conclude that we are so masochistic that the problem isn't with the bullies and the homophobes but with--guess!--us! Save us from such self-loathing creeps as this.

Posted by: Jay | May 23, 2012 6:41:49 PM

I suggest you sign up to spend Ravi's month in jail for him since you are accountable. But please don't say I am.

Posted by: Jay | May 23, 2012 6:46:37 PM

Ari, We all get that you are smart but your writing on Ravi comes off nearly as smug as Ravi himself.

I like your pieces on federal court challenges but here you sound like a truly obnoxious prick.

Tone it down, Harvard; we all get that you're smart, a lot of us are. You write here as though this were an academic debate with very emotional context to a very emotional issue. You write as though you have little or no empathy for Tylers: past, present and future.

ANDY TOWLE: This is the second time you've allowed this kind of obnoxious column from Waldman -- you are his boss, we are your customers, how about having a chat with him about how to communicate with real gay men, with some empathy on a very sensitive issue? This is your business, and your responsibility.

Posted by: Chris | May 23, 2012 6:48:18 PM

To get 30 days, the fine, the community service - with convictions on *so many* counts, including witness intimidation, destroying evidence and lying to investigators - is absurd.

Multiple crimes were committed by Ravi, yet everybody is just focusing on just a couple counts - what about the rest of the charges and convictions ?

You and I would serve FAR more time for the same convictions, and THAT is what is at issue here.

Everybody's focus on the suicide and just the hate crime enhancements has essentially excused every other count he was convicted of. Quite a remarkable achievement on the defense's part; and quite the stunning f*uck up on the part of all the silly fags that claim they wanted some justice.

Posted by: NVTodd | May 23, 2012 7:17:29 PM

Keep defending this verdict people.

It's truly remarkable that hate crime charges are capable of nullifying other crimes committed right after.

But this has been the agenda all along - thanks ever so much for playing into the hands of the people who hate us, you retards.

Posted by: NVTodd | May 23, 2012 7:22:04 PM

* should read: "You write as this were an academic debate, and not a very emotion issue for your readers."

I really would fault you for taking a law review article (unemotional by their nature as well as dry -- and this piece is very dry indeed) and retrofitting it slightly to this site. Readers of this site want legal info and opinion on DOMA and Prop 8 (issues that affect them personally), but not on this case.

Perhaps this can be lesson to you (you are what? 29? 30? I imagine it's hard for you to understand the pain of people one or two or three decades older than you, whose discrimination experience on average is a lot graver than the average 20-something and who have lived through the cruelty (by neighbors, family, etc.) of the height the AIDS epidemic) on what is too tender to touch; when restraint in writing is the better and more tactful option.

There was nothing that obligated you to write about this on this site. And certainly nothing that suggested you ought to write about it a second time on this site.

Posted by: Chris | May 23, 2012 7:26:52 PM

"It's amazing how much people want to see other people suffer. This Ravi guy according to his Mother's speach has barely eaten and has had absolutly no social life for the last 20 months.... I agree with the NJ article stating that this was just a huge lack of communication between two boys.
Posted by: litzenburn"

Because nobody should have to suffer the consequences of witness intimidation, lying tot he cops, and destroying evidence ?

Please die, all of you bleeding hearts, please, all of you, just die.

Posted by: NVTodd | May 23, 2012 7:27:42 PM

---Yes he did and to you too which you would know if you had an ounce of self-respect.----

So what exactly did he do to you ? Personally , not by projection.

Posted by: aki | May 23, 2012 8:42:24 PM

"The first is invasion of privacy for the filming of the personal sex act and broadcasting it to others via the internet. There should be a sentence for that crime. The second is the act of doing it for the purposes of terrorizing an entire community..."

Neither of those things happened.
He did not broadcast sex. He peeked at his webcam with Molly for a few seconds at two clothed guys kissing.
There is no evidence that he intended to terrorize Tyler, let alone the gay community.
I actually suspect he may have been sexually curious and too immature to express that for what it really was.

We also don't know exactly why Tyler jumped off the bridge. His suicide message just said that he was doing it, but gave no reason why.
It's possible that he killed himself because of Dharun, but there were other factors going on in his life too, like feeling rejected by his mother (which is HUGE to a kid) and feeling socially awkward in a brand new life situation. Dharun's friends' reaction also may have hurt him more than anything Dharun did. If Dharun's father is as homophobic as Dharun seemed to think, then there's some more blame to go around.
There must have been a lot of people who reflected (as always happens) on what they said or didn't say to Tyler in the days before he died.
What should be obvious, though, is that Dharun did not create Tyler's depression all by himself.

Posted by: GregV | May 23, 2012 10:48:55 PM

Ari-

I found your analysis helpful, mostly to understand why I am so uncomfortable with the concept of criminal law, or at least its implementation in the contemporary USA.

As to the Dharun sentence, I can sum up my reaction in two sentences:
1. I think the sentence was appropriate.
2. I feel the sentence was wildly inadequate.

I hope that the Clementis will pursue a civil suit against Mr. Dharun (and Does 1-10). I'd like to see the Attorney-General of New Jersey bring that suit on their behalf.

Posted by: Rich | May 24, 2012 12:21:21 AM

I'm going to hazard a guess that most politicians weren't considering various philosophies when writing laws (oh who am I kidding -- lobbyists write the laws)

Given the varied inputs into the legal system, I don't think any single philosophy applies or dominates, so I'm not sure that's the proper analysis to make.

I think the public and politicians generally take a simple view. We don't want some things to happen, and they are happening without punishment, so we apply punishments, and increase them until the occurrence drops to a reasonable level, or until we punish so many people so harshly that there is political push-back.

Posted by: Randy | May 24, 2012 2:50:59 AM

Mr. Frank's take is a load of crap. You could say that men rape women because men are hardwired to spread their seed. All crime has roots in what is hardwired within the human condition. When someone fails to control these primal urges we call it a crime and lock them up. You wouldn't have this sort of crap at a racial hate crime case. 'The murderer is racist and this is indicative of many members of society so my client shouldn't be used as a scape goat because we're all a bit racist and he should get 1 month in prison...'